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OSHA further delays enforcement of rules on anti-retaliation

November 4, 2016
The Occupational Safety and Health Administration has again delayed — now, until Dec. 1, 2016 — enforcement of the anti-retaliation mandates in its recently revised injury and illness recordkeeping and reporting rules. 
Enforcement of the provisions that went into effect Aug. 1 was already extended once, to Nov. 1. 
OSHA is delaying enforcement at the request of a judge who is considering the complaint and motion for preliminary injunction filed by several industry groups challenging the rule. The mandates require that employers discontinue certain drug testing and safety incentive policies. 
According to OSHA, "blanket post-injury drug testing policies deter proper reporting." Acknowledging the safety benefits of drug testing, OSHA states that the rule’s anti-retaliation provision "does not ban drug testing of employees," but instead effectively requires that such policies be carefully crafted so that drug testing (or the threat of drug testing) does not serve as a form of adverse action against employees who report injuries or illnesses. 
Bottom line: Such policies should only impose post-accident/incident drug or alcohol testing if and when there is a possibility that drug or alcohol use by an employee may have played a role in the accident or incident.  
Note also that certain types of incentive programs may be deemed "retaliatory" if and to the extent that they deny a benefit to employees when certain injury or illness rates are exceeded. To be sure, the anti-retaliation provision does not "categorically ban all incentive programs," but requires that they be carefully structured to encourage safety in the workplace without discouraging the reporting of injuries and illnesses. 
For example, incentive programs designed to disqualify employees for monetary bonuses or other benefits and which could discourage or deter reasonable employees from reporting work-related injuries or illnesses may violate OSHA’s anti-retaliation rule.